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The Copyright Office has posted reply comments submitted in its Orphan Works proceeding. Of particular interest to me were the following:

• Professors Jane Ginsburg and Paul Goldstein on the interaction between orphan works proposals and the Berne and TRIPS treaties. They have some misgivings about the compatibility of even a non-formalities-based solution with treaty obligations, but find that a narrowly circumscribed solution based on the inability to identify the rights-holder is likely to fulfill those obligations.
• Creative Commons and Save The Music renew their proposal for a “categorical” solution to the orphan works problem, requiring copyright holders to signal whether or not they wish to exploit their rights. These comments are particularly notable for their skillful use of comments submitted in the initial round as evidence for their argument — great work Chris, Lauren, and Stanford CIS students!
• The National Music Publishers Association and the Harry Fox Agency, arguing that the orphan works problem with regard to making new recordings of old songs is nonexistent (they’re right) and arguing that setting up an agent to set and collect “market rate” fees for all other uses for which the musical work copyright owner cannot be found is the best solution for all players.
• The Internet Archive submits comments proposing a notice-and-takedown procedure for library and archival use of all works, including orphan works. (Comments written by students and fellows at the Samuelson Clinic at Boalt Hall — great work!)
• The Recording Industry Association of America, believe it or not, is in favor of a solution to the orphan works problem. They oppose “categorical” solutions and see some problems with the CCI proposal that was widely praised in the initial round, but they remain positive about the general project. Of course, their ox is exceedingly unlikely to be gored; RIAA members deal in sound recordings, which have only been protected by federal copyright law since 1972. Because of their youth (and because RIAA members are generally easy to find), RIAA members’ recordings are unlikely to take on orphaned status.
• ASCAP still doesn’t think there really is an orphan works problem, especially with regard to musical works. They’re partially right — nobody who’s informed is wandering in the wilderness wondering whom to pay because they want to sing “At Last” on karaoke night at the pub. Their point about the “tyranny of the anecdote” is a good one, though in this case I think that the hundreds and hundreds of anecdotes received in the initial round of comments adds up to a real statement about a real problem.
• The MPAA (represented by the high-powered [and occasionally rather awesome] Washington copyright boutique Smith & Metalitz) is in favor of a due diligence based solution, though one with the same limits proposed by other copyright holders — for example, that each prospective user must do his own due diligence and may not rely on the search of a previous user. They call the Creative Commons proposal and those with similar registration-based solutions “outliers” and ask the Copyright Office to put them to one side and concentrate on a due diligence based solution. And on the last page, they helpfully include the phone numbers of the clearance departments for all of the major studios.
• The Authors Guild has general support for a solution, and reports from a survey of their membership that only 15% have run into orphan work problems. While this may seem small, this means that roughtly 1,200 of the Authors Guild’s 8,200 members — the most sophisticated of published writers — have been hampered in their literary goals by the lack of a solution to this problem.
• The Illustrators’ Partnership reply comments, like their initial comments, stake out the most copyright-maximalist end of the spectrum of submissions. They spend substantially their entire reply comment attacking the Creative Commons proposal and the CCI proposal. None of this is terribly surprising when one glances at the bottom of their letterhead and notices that their lawyer is arch-maximalist Bruce Lehman, he of the NII White Paper.
• Finally, the Electronic Frontier Foundation, in comments put together by Jason Schultz, has some very smart general observations about some of the limitations commenters seek to impose on any solution to the orphan works problem. He notes that escrow accounts are awfully inefficient and make no sense in the broad category of cases in which no fee would have been charged; that HFA, ASCAP, and BMI’s assertions that some types of works are categorically immune from orphan works problems is simply false; that the allowable uses of truly orphaned works should be unlimited in scope; and that the Directors Guild’s concerns about the vindication of the director’s moral rights simply have nothing to do with copyright.

There is startlingly broad consensus for some sort of action toward a solution to the orphan works problem, and while the next step is likely to be a series of rather uncomfortable roundtable meetings, it seems that there is a light at the end of the tunnel. It’s said that copyright legislation only happens when all of the players at the table have something to gain and can hash out a proposal among themselves; that certainly seems likely to happen eventually for orphan works, given the positions of the major players as set forth in their comments.